PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 19-1619 JUAN CARLOS AMAYA, Petitioner, v. JEFFREY A. ROSEN, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: September 9, 2020 Decided: January 25, 2021 Amended: April 12, 2021 Before THACKER, RICHARDSON, and QUATTLEBAUM, Circuit Judges. Petition for review granted in part and denied in part and case remanded for further consideration consistent with this published opinion. Judge Quattlebaum wrote the opinion, in which Judge Thacker joined. Judge Richardson wrote a dissenting opinion. ARGUED: Abdoul Aziz Konare, KONARE LAW, Frederick, Maryland, for Petitioner. John Frederick Stanton, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Joseph H. Hunt, Assistant Attorney General, Jessica E. Burns, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. QUATTLEBAUM, Circuit Judge: An alien may seek to avoid deportation by showing a clear probability that, if deported, he will be persecuted because of his race, religion, nationality, political opinion or membership in a particular social group (“PSG”). Relevant here, if an alien claims he will be persecuted because of his membership in a PSG, that PSG must be “particular.” Juan Carlos Amaya, a citizen of El Salvador, seeks to avoid deportation to that country, fearing persecution on account of membership in the PSG “former Salvadoran MS-13 members.” 1 Appellant’s Br. at 13–16. For that reason, he argued to an immigration judge (“IJ”) that his removal from the United States should be withheld. 2 After the IJ denied Amaya’s claims, he appealed to the Board of Immigration Appeals (“BIA”). The BIA dismissed Amaya’s appeal, determining that the “former Salvadoran MS-13 members” PSG was “too diffuse” to satisfy the particularity requirement. J.A. 4. Assuming we must 1 The parties dispute the precise delineation of the PSG that this Court should review. The government asserts it is “former gang members,” whereas Amaya asserts it is “former Salvadoran MS-13 members.” Compare Appellee’s Br. at 13 with Appellant’s Br. at 13–16. First, we find that Amaya properly raised the PSG “former Salvadoran MS-13 members” in his brief before his immigration hearing, which the IJ admitted into the record. J.A. 75, 431, 436–38. Second, the IJ analyzed this PSG in her decision. Finally, Amaya did not waive review of this precisely delineated PSG by making more generic descriptive references in his brief before the BIA. Therefore, “former Salvadoran MS-13 members” is properly preserved for review here. Amaya also sought relief based on his membership in the PSG “[potential] testifying witness.” J.A. 121. Because Amaya never raised this PSG in his brief here, he waived review in this appeal. See Fed. R. App. P. 28(a)(8)(A); Karimi v. Holder, 715 F.3d 561, 565 n. 2 (4th Cir. 2013). Thus, we will only consider the PSG “former Salvadoran MS-13 members.” 2 Amaya also petitions for review of the BIA’s dismissal of his claim for protection under the Convention Against Torture (“CAT”). 2 afford Chevron …
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